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Licensing on the Loose

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Say "EULAs" (end-user license agreements) quickly, and it sounds like "You lose." Its appropriate because both mean about the same thing. EULAs have been foisting one-sided insanity on the public for some time, even though they continue to lose when tested in court. Moreover, despite the resounding defeat suffered by the Uniform Computer Information Transactions Act, software licenses have, if anything, gotten worse. Licensing chicanery has now been paired with software enforcement mechanisms that can deactivate software, force unwanted uploads and mandate upgrades in ways that make us users wonder if we actually own the software that we purchased.

Oh, wait. Thats right, we dont own the software we have purchased—or at least software companies like to tell us we dont. The tortured legalese of most EULAs states that we have been sold a license to use the software, and the license can be revoked for pretty much any reason. Reading through the twisted logic in most EULAs is like watching an old Abbott and Costello skit. The classic clause in most licenses generally contains this meaning: Even if the software has horrible security problems that the vendor knew about and did nothing to fix and even if these problems destroy your computers and network, then thats tough.

Many software companies want to have their cake and eat it, too: They want you to be an owner or a licensee, depending on which is more convenient for them. For example, if youre a licensee, then you should be entitled to constant access to the software, even if you lose the physical media. But with many applications, especially shrink-wrapped ones, if you dont have the disks, then you must repurchase them. But that suggests you purchased something physical and should therefore have full resale and general use rights.

Worse, this kind of thinking and licensing practice is spreading. You may not realize it, but many of the Web sites you visit every day have what are called browse-wrap licenses. These licenses state that when you click on a link to visit and browse the Web site, youve agreed to whatever restrictions are named in the browse-wrap license that youve never seen.

Further reading

This kind of licensing is now moving into the world of physical goods. One company that makes woodworking tools recently released a template tool under a licensing agreement that states that the purchaser is simply licensing the metal template. (See www.stots.com/agree.htm).

The implications for the future are ominous. For example, in trusted computing, which will potentially give vendors the ability to remotely control systems, its easy to see a future where you dont even own the hardware on which your company is running.

So what can one do? If youre a giant company like General Motors, you can most likely force software vendors to meet your own contract terms, rather than having to go along with one-sided, click-through licenses. And when you do license, you can probably get a code escrow agreement in which you own the software if anything happens to the vendor. For small and midsize businesses, as well as for consumers, these probably arent options. The tendency is to click and bear it, thinking that the terms of the license will never be enforced on you or your company.

Acquiescence strongly implies consent, however, even if you dont have a choice. The longer these kinds of licenses are accepted, the sooner they will end up having the force of law simply by becoming the way things are done. Add to that the way the Digital Millennium Copyright Act enforces license protections, and theres a danger that customers will be at the mercy of whatever license software vendors choose to write.

Hey, software vendors, would a little restraint be too much to ask? Limit your license agreements to protecting your intellectual property, and dont try to control how people use your products. Most users will be happy to agree to the terms.

To all of us who are stuck with a bunch of lousy licenses: Investigate alternatives such as open-source software, and let your legislators know that the typical EULA is not good for anyones business.

Then we can look forward to the time when a mouse click wont be considered a contract.

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